Exhibit 8
<PAGE>
AGREEMENT
AGREEMENT dated April 1, 1984, by and between the Great-West Life &
Annuity Insurance Company (the "Insurance Company"), a Kansas corporation, on
its behalf and on behalf of FUTUREFUNDS Series Account ("the Account"), and
MAXIM Series Fund, Inc. ("the Fund").
WITNESSETH:
WHEREAS, the Account is a separate account established and maintained
by the Insurance Company pursuant to the laws of the State of Kansas for
variable annuity contracts issued by the Insurance Company;
WHEREAS, the Account is registered as a unit investment trust under the
Investment Company Act of 1940 ("Investment Company Act");
WHEREAS, the Fund is registered as an open-end management company
organized as a series fund under the Investment Company Act;
WHEREAS, the Fund shall be currently comprised of a money market
portfolio, bond portfolio and equity portfolio, but other portfolios may be
established in the future;
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Insurance Company intends to purchase shares in the portfolios
described above and, in its discretion, in any other portfolios that may be
established, on behalf of the Account to fund variable annuity contracts.
NOW, THEREFORE, the Insurance Company and the Fund hereby agree as
follows:
1. The Fund agrees that it will sell to the Account those shares of the Fund
which the Account orders, executing such orders on a daily basis at the net
asset value next computed after receipt of the order for the shares of the Fund.
2. The Fund agrees that it will redeem for cash, on the Account's request, any
full or fractional shares of the Fund held by the Account, executing such
requests on a daily basis at the net asset value next computed after receipt of
the request for redemption of shares of the Fund.
3. All purchases and redemptions of shares in the Fund by the Insurance Company
for the Account shall be at net asset value and no commission, dealer spread or
other fee shall be payable to the Fund or any broker/dealer.
4. A purchase of Fund shares shall be settled within 7 days after the
transaction is effected.
5. A redemption of Fund shares shall be settled within 7 days after the
transaction is effected.
6. This Agreement shall remain in effect until terminated by the mutual
written consent of the parties hereto.
7. This Agreement shall be subject to the provisions of the Investment Company
Act, the Securities Act of 1933 and the Securities Exchange Act of 1934 and the
rules and regulations, and rulings thereunder, including such exemptions from
those statutes, rules and regulations as the Securities and Exchange Commission
may grant, and the terms hereof shall be interpreted and construed in accordance
therewith.
8. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By: /s/ G.R. Dinney ..................
Attest:
(Title) President ..................
/s/ D.C. Lennox
Secretary
MAXIM SERIES FUND, INC.
By: /s/ G.R. Dinney ..................
Attest:
(Title) President ..................
/s/ D.C. Lennox
Secretary
<PAGE>
FUND PARTICIPATION AGREEMENT
Sample Agreement for Unaffiliated Insurance Products Funds
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
ARTICLE I. Sale of Fund
Shares.......................................................................
ARTICLE II. Representations and
Warranties............................................................
ARTICLE III. Prospectuses and Proxy Statements;
Voting.................................................
ARTICLE IV. Sales Material and
Information............................................................
ARTICLE V. Fees and
Expenses.........................................................................
ARTICLE VI. Diversification and
Qualification.........................................................
ARTICLE VII. Potential Conflicts and Compliance With
Mixed and Shared Funding Exemptive Order
.................................................
ARTICLE VIII. Indemnification
..........................................................................
ARTICLE IX. Applicable
Law............................................................................
ARTICLE X.
Termination...............................................................................
ARTICLE XI.
Notices...................................................................................
ARTICLE XII.
Miscellaneous.............................................................................
SCHEDULE A
Contracts.................................................................................
SCHEDULE B Designated
Portfolios.....................................................................
SCHEDULE C Reports per Section
6.6...................................................................
SCHEDULE D
Expenses..................................................................................
SCHEDULE E Trading and NSCC Networking
Agreement.....................................................
SCHEDULE F Administrative
Services...................................................................
SCHEDULE G Non-Compete
Provisions....................................................................
</TABLE>
<PAGE>
PARTICIPATION AGREEMENT
<PAGE>
Among
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
XYZ FUNDS,
XYZ INVESTMENT ADVISER,
and
XYZ DISTRIBUTOR
THIS AGREEMENT, made and entered into as of this ____ day of
_______________, 2000 by and among GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
(hereinafter "GWL&A"), a Colorado life insurance company, on its own behalf and
on behalf of its Separate Account FutureFunds Series Account (the "Account");
XYZ FUND, a organized under the laws of (hereinafter the "Fund"); XYZ INVESTMENT
ADVISER (hereinafter the "Adviser"), a organized under the laws of ; and XYZ
DISTRIBUTOR, a organized under the laws of (hereinafter the "Distributor").
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts (collectively, the "Variable Insurance Products") to
be offered by insurance companies, including GWL&A, which have entered into
participation agreements similar to this Agreement (hereinafter "Participating
Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (hereinafter the "SEC"), dated (File No. ),
granting Participating Insurance Companies and variable annuity
and variable life insurance
separate accounts exemptions from the provisions of sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended, (hereinafter the
"1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Fund to be sold to and held by variable
annuity and variable life insurance separate accounts of life insurance
companies that may or may not be affiliated with one another and qualified
pension and retirement plans ("Qualified Plans") (hereinafter the "Mixed and
Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolio(s) are registered under
the Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws; and
WHEREAS, the Distributor is duly registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, GWL&A has registered certain variable annuity contracts
supported wholly or partially by the Account (the "Contracts") under the 1933
Act and said Contracts are listed in Schedule A attached hereto and incorporated
herein by reference, as such Schedule may be amended from time to time by mutual
written agreement; and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of GWL&A,
under the insurance laws of the State of Colorado, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, GWL&A has registered the Account as a unit investment trust
under the 1940 Act and has registered the securities deemed to be issued by the
Account under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, GWL&A intends to purchase shares in the Portfolio(s) listed in
Schedule B attached hereto and incorporated herein by reference, as such
Schedule may be amended from time to time by mutual written agreement (the
"Designated Portfolio(s)"), on behalf of the Account to fund the Contracts, and
the Fund is authorized to sell such shares to unit investment trusts such as the
Account at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Account also intends to purchase shares in other open-end
investment companies or series thereof not affiliated with the Fund (the
"Unaffiliated Funds") on behalf of the Account to fund the Contracts; and
NOW, THEREFORE, in consideration of their mutual promises, GWL&A, the
Fund, the Distributor and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. All purchases, redemptions and exchanges of Designated Portfolio
shares by GWL&A on behalf of the Account, in addition to the pricing and
correction thereof, of Designated Portfolio shares, shall be governed by and
subject to the terms of the Trading and NSCC Networking Agreement, incorporated
by reference herein and attached hereto as Schedule E.
1.2 Notwithstanding Section 1.1 hereof, if an adjustment is necessary
to correct an error which has caused Contractowners to receive less than the
amount to which they are entitled, the number of shares of the applicable
sub-account of such Contractowners will be adjusted and the amount of any
underpayments shall be credited by the Adviser to GWL&A for crediting of such
amounts to the applicable Contractowners accounts. Upon notification by the
Adviser of any overpayment due to an error, GWL&A shall promptly remit to
Adviser any overpayment that has not been paid to Contractowners; however,
Adviser acknowledges that GWL&A does not intend to seek additional payments from
any Contractowner who, because of a pricing error, may have underpaid for units
of interest credited to his/her account. In no event shall GWL&A be liable to
Contractowners for any such adjustments or underpayment amounts.
<PAGE>
ARTICLE II. Representations and Warranties
2.1. GWL&A represents and warrants that the Contracts and the
securities deemed to be issued by the Account under the Contracts are or will be
registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. GWL&A further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established the Account prior
to any issuance or sale of units thereof as a segregated asset account under
Section 10-7-401, et. seq. of the Colorado Insurance Law and has registered the
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the Contracts and that it
will maintain such registration for so long as any Contracts are outstanding as
required by applicable law.
2.2. The Fund represents and warrants that Designated Portfolio(s)
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold in compliance with all applicable federal
securities laws including without limitation the 1933 Act, the 1934 Act, and the
1940 Act and that the Fund is and shall remain registered under the 1940 Act.
The Fund shall amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares.
2.3. The Fund reserves the right to adopt a plan pursuant to Rule 12b-1
under the 1940 Act and to impose an asset-based or other charge to finance
distribution expenses as permitted by applicable law and regulation. In any
event, the Fund and Adviser agree to comply with applicable provisions and SEC
staff interpretations of the 1940 Act to assure that the investment advisory or
management fees paid to the Adviser by the Fund are in accordance with the
requirements of the 1940 Act. To the extent that the Fund decides to finance
distribution expenses pursuant to Rule 12b-1, the Fund undertakes to have its
Board, a majority of whom are not interested persons of the Fund, formulate and
approve any plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses.
2.4. The Fund represents and warrants that it will make every effort to
ensure that the investment policies, fees and expenses of the Designated
Portfolio(s) are and shall at all times remain in compliance with the insurance
and other applicable laws of the State of Colorado and any other applicable
state to the extent required to perform this Agreement. The Fund further
represents and warrants that it will make every effort to ensure that Designated
Portfolio(s) shares will be sold in compliance with the insurance laws of the
State of Colorado and all applicable state insurance and securities laws. The
Fund shall register and qualify the shares for sale in accordance with the laws
of the various states if and to the extent required by applicable law. GWL&A and
the Fund will endeavor to mutually cooperate with respect to the implementation
of any modifications necessitated by any change in state insurance laws,
regulations or interpretations of the foregoing that affect the Designated
Portfolio(s) (a "Law Change"), and to keep each other informed of any Law Change
that becomes known to either party. In the event of a Law Change, the Fund
agrees that, except in those circumstances where the Fund has advised GWL&A that
its Board of Directors has determined that implementation of a particular Law
Change is not in the best interest of all of the Fund's shareholders with an
explanation regarding why such action is lawful, any action required by a Law
Change will be taken.
2.5. The Fund represents and warrants that it is lawfully organized and
validly existing under the laws of the State of and that it does and
will comply in all material respects with the 1940 Act.
2.6. The Adviser represents and warrants that it is and shall remain
duly registered under all applicable federal and state securities laws and that
it shall perform its obligations for the Fund in compliance in all material
respects with the laws of the State of and any applicable state and federal
securities laws.
2.7. The Distributor represents and warrants that it is and shall
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance in all
material respects with the laws of the State of and any applicable state and
federal securities laws.
2.8. The Fund and the Adviser represent and warrant that all of their
respective officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Fund are, and shall
continue to be at all times, covered by one or more blanket fidelity bonds or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage required by Rule 17g-1 under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bonds shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
2.9. The Fund will provide GWL&A with as much advance notice as is
reasonably practicable of any material change affecting the Designated
Portfolio(s) (including, but not limited to, any material change in the
registration statement or prospectus affecting the Designated Portfolio(s)) and
any proxy solicitation affecting the Designated Portfolio(s) and consult with
GWL&A in order to implement any such change in an orderly manner, recognizing
the expenses of changes and attempting to minimize such expenses by implementing
them in conjunction with regular annual updates of the prospectus for the
Contracts. The Fund agrees to share equitably in expenses incurred by GWL&A as a
result of actions taken by the Fund, consistent with the allocation of expenses
contained in Schedule D attached hereto and incorporated herein by reference.
2.10. GWL&A represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of 1986 as
amended ("the Code"), that the Contracts are currently and at the time of
issuance will be treated as annuity contracts under applicable provisions of the
Code, and that it will make every effort to maintain such treatment and that it
will notify the Fund, the Distributor and the Adviser immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so treated
or that they might not be so treated in the future. In addition, GWL&A
represents and warrants that the Account is a "segregated asset account" and
that interests in the Account are offered exclusively through the purchase of or
transfer into a "variable contract" within the meaning of such terms under
Section 817 of the Code and the regulations thereunder. GWL&A will use every
effort to continue to meet such definitional requirements, and it will notify
the Fund, the Distributor and the Adviser immediately upon having a reasonable
basis for believing that such requirements have ceased to be met or that they
might not be met in the future. GWL&A represents and warrants that it will not
purchase Fund shares with assets derived from tax-qualified retirement plans
except, indirectly, through Contracts purchased in connection with such plans.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Adviser or Distributor shall provide GWL&A
with as many copies of the Fund's current prospectus for the Designated
Portfolio(s) as GWL&A may reasonably request for marketing purposes (including
distribution to Contractowners with respect to new sales of a Contract), with
expenses to be borne in accordance with Schedule D hereof. If requested by GWL&A
in lieu thereof, the Adviser, Distributor or Fund shall provide such
documentation (including a camera-ready copy and computer diskette of the
current prospectus for the Designated Portfolio(s)) and other assistance as is
reasonably necessary in order for GWL&A once each year (or more frequently if
the prospectuses for the Designated Portfolio(s) are amended) to have the
prospectus for the Contracts and the Fund's prospectus for the Designated
Portfolio(s) printed together in one document. The Fund and Adviser agree that
the prospectus (and semi-annual and annual reports) for the Designated
Portfolio(s) will describe only the Designated Portfolio(s) and will not name or
describe any other portfolios or series that may be in the Fund unless required
by law.
3.2. If applicable state or federal laws or regulations require that
the Statement of Additional Information ("SAI") for the Fund be distributed to
all Contractowners, then the Fund, Distributor and/or the Adviser shall provide
GWL&A with copies of the Fund's SAI or documentation thereof for the Designated
Portfolio(s) in such quantities, with expenses to be borne in accordance with
Schedule D hereof, as GWL&A may reasonably require to permit timely distribution
thereof to Contractowners. The Adviser, Distributor and/or the Fund shall also
provide SAIs to any Contractowner or prospective owner who requests such SAI
from the Fund (although it is anticipated that such requests will be made to
GWL&A).
3.3. The Fund, Distributor and/or Adviser shall provide GWL&A with
copies of the Fund's proxy material, reports to stockholders and other
communications to stockholders for the Designated Portfolio(s) in such quantity,
with expenses to be borne in accordance with Schedule D hereof, as GWL&A may
reasonably require to permit timely distribution thereof to Contractowners.
3.4. It is understood and agreed that, except with respect to
information regarding GWL&A provided in writing by that party, GWL&A is not
responsible for the content of the prospectus or SAI for the Designated
Portfolio(s). It is also understood and agreed that, except with respect to
information regarding the Fund, the Distributor, the Adviser or the Designated
Portfolio(s) provided in writing by the Fund, the Distributor or the Adviser,
neither the Fund, the Distributor nor Adviser are responsible for the content of
the prospectus or SAI for the Contracts.
3.5. If and to the extent required by law GWL&A shall:
(i) solicit voting instructions from Contractowners;
(ii) vote the Designated Portfolio(s) shares held in the Account in
accordance with instructions received from Contractowners: and
(iii) vote Designated Portfolio shares held in the Account
for which no instructions have been received in the
same proportion as Designated Portfolio(s) shares for
which instructions have been received from
Contractowners, so long as and to the extent that the
SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract
owners. GWL&A reserves the right to vote Fund shares
held in any segregated asset account in its own
right, to the extent permitted by law.
3.6. GWL&A shall be responsible for assuring that each of its separate
accounts holding shares of a Designated Portfolio calculates voting privileges
as directed by the Fund and agreed to by GWL&A and the Fund. The Fund agrees to
promptly notify GWL&A of any changes of interpretations or amendments of the
Mixed and Shared Funding Exemptive Order.
3.7. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the
Commission may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. GWL&A shall furnish, or shall cause to be furnished, to the Fund
or its designee, a copy of each piece of sales literature or other promotional
material that GWL&A, respectively, develops or proposes to use and in which the
Fund (or a Portfolio thereof), its Adviser or one of its sub-advisers or the
Distributor is named in connection with the Contracts, at least ten (10)
Business Days prior to its use. No such material shall be used if the Fund
objects to such use within five (5) Business Days after receipt of such
material.
4.2. GWL&A shall not give any information or make any representations
or statements on behalf of the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement, prospectus or SAI for the Fund shares, as the same may be amended or
supplemented from time to time, or in sales literature or other promotional
material approved by the Fund, Distributor or Adviser, except with the
permission of the Fund, Distributor or Adviser.
4.3. The Fund or the Adviser shall furnish, or shall cause to be
furnished, to GWL&A, a copy of each piece of sales literature or other
promotional material in which GWL&A and/or its separate account(s), is named at
least ten (10) Business Days prior to its use. No such material shall be used if
GWL&A objects to such use within five (5) Business Days after receipt of such
material.
4.4. The Fund, the Distributor and the Adviser shall not give any
information or make any representations on behalf of GWL&A or concerning GWL&A,
the Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus or SAI for the Contracts, as
the same may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by GWL&A or its designee,
except with the permission of GWL&A.
4.5. The Fund will provide to GWL&A at least one complete copy of all
registration statements, prospectuses, SAIs, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Designated
Portfolio(s), contemporaneously with the filing of such document(s) with the SEC
or NASD or other regulatory authorities.
4.7. GWL&A will provide to the Fund at least one complete copy of all
registration statements, prospectuses, SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Contracts or the Account, contemporaneously with the
filing of such document(s) with the SEC, NASD, or other regulatory authority.
4.8. For purposes of Articles IV and VIII, the phrase "sales literature
and other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media; e.g.,
on-line networks such as the Internet or other electronic media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the NASD rules, the
1933 Act or the 1940 Act.
4.9. At the request of any party to this Agreement, each other party
will make available to the other party's independent auditors and/or
representative of the appropriate regulatory agencies, all records, data and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund and the Adviser will pay certain fees in accordance with
Schedule F hereof. In addition, the parties will bear certain expenses in
accordance with Schedule D, Articles III, V, and other provisions of this
Agreement.
5.2. All expenses incident to performance by the Fund, the Distributor
and the Adviser under this Agreement shall be paid by the appropriate party, as
further provided in Schedule D. The Fund shall see to it that all shares of the
Designated Portfolio(s) are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent required, in accordance
with applicable state laws prior to their sale.
5.3. The parties shall bear the expenses of routine annual distribution
(mailing costs) of the Fund's prospectus and distribution (mailing costs) of the
Fund's proxy materials and reports to owners of Contracts offered by GWL&A, in
accordance with Schedule D.
5.4. The Fund, the Distributor and the Adviser acknowledge that a
principal feature of the Contracts is the Contractowner's ability to choose from
a number of unaffiliated mutual funds (and portfolios or series thereof),
including the Designated Portfolio(s) and the Unaffiliated Funds, and to
transfer the Contract's cash value between funds and portfolios. The Fund, the
Distributor and the Adviser agree to cooperate with GWL&A in facilitating the
operation of the Account and the Contracts as described in the prospectus for
the Contracts, including but not limited to cooperation in facilitating
transfers between Unaffiliated Funds.
ARTICLE VI. Diversification and Qualification
6.1. The Fund, the Distributor and the Adviser represent and warrant
that the Fund will at all times sell its shares and invest its assets in such a
manner as to ensure that the Contracts will be treated as annuity contracts
under the Code, and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Fund, Distributor and Adviser represent and warrant
that the Fund and each Designated Portfolio thereof will at all times comply
with Section 817(h) of the Code and Treasury Regulation ss.1.817-5, as amended
from time to time, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications or successor provisions to
such Section or Regulations. The Fund, the Distributor and the Adviser agree
that shares of the Designated Portfolio(s) will be sold only to Participating
Insurance Companies and their separate accounts and to Qualified Plans.
6.2. No shares of any Designated Portfolio of the Fund will be sold to the
general public.
6.3. The Fund, the Distributor and the Adviser represent and warrant
that the Fund and each Designated Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that each
Designated Portfolio will maintain such qualification (under Subchapter M or any
successor or similar provisions) as long as this Agreement is in effect.
6.4. The Fund, Distributor or Adviser will notify GWL&A immediately
upon having a reasonable basis for believing that the Fund or any Designated
Portfolio has ceased to comply with the aforesaid Section 817(h) diversification
or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2, 8.3 and
8.4 hereof and without in any way limiting or restricting any other remedies
available to GWL&A, the Adviser or Distributor will pay all costs associated
with or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of the Fund or any Designated Portfolio to comply with Sections 6.1,
6.2, or 6.3 hereof, including all costs associated with reasonable and
appropriate corrections or responses to any such failure; such costs may
include, but are not limited to, the costs involved in creating, organizing, and
registering a new investment company as a funding medium for the Contracts
and/or the costs of obtaining whatever regulatory authorizations are required to
substitute shares of another investment company for those of the failed
Portfolio (including but not limited to an order pursuant to Section 26(b) of
the 1940 Act); such costs are to include, but are not limited to, fees and
expenses of legal counsel and other advisors to GWL&A and any federal income
taxes or tax penalties and interest thereon (or "toll charges" or exactments or
amounts paid in settlement) incurred by GWL&A with respect to itself or owners
of its Contracts in connection with any such failure or anticipated or
reasonably foreseeable failure.
6.6. The Fund at the Fund's expense shall provide GWL&A or its designee
with reports certifying compliance with the aforesaid Section 817(h)
diversification and Subchapter M qualification requirements, at the times
provided for and substantially in the form attached hereto as Schedule C and
incorporated herein by reference; provided, however, that providing such reports
does not relieve the Fund of its responsibility for such compliance or of its
liability for any non-compliance.
6.7. GWL&A agrees that if the Internal Revenue Service ("IRS") asserts
in writing in connection with any governmental audit or review of GWL&A or, to
GWL&A's knowledge, or any Contractowner that any Designated Portfolio has failed
to comply with the diversification requirements of Section 817(h) of the Code or
GWL&A otherwise becomes aware of any facts that could give rise to any claim
against the Fund, Distributor or Adviser as a result of such a failure or
alleged failure:
(a) GWL&A shall promptly notify the Fund, the Distributor and the Adviser
of such assertion or potential claim;
(b) GWL&A shall consult with the Fund, the Distributor and the Adviser
as to how to minimize any liability that may arise as a result of such
failure or alleged failure;
(c) GWL&A shall use its best efforts to minimize any liability of the
Fund, the Distributor and the Adviser resulting from such failure,
including, without limitation, demonstrating, pursuant to Treasury
Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that
such failure was inadvertent;
(d) any written materials to be submitted by GWL&A to the IRS, any
Contractowner or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any
such materials to be submitted to the IRS pursuant to Treasury
Regulations, Section 1.817-5(a)(2)) shall be provided by GWL&A to the
Fund, the Distributor and the Adviser (together with any supporting
information or analysis) within at least two (2) business days prior to
submission;
(e) GWL&A shall provide the Fund, the Distributor and the Adviser with
such cooperation as the Fund, the Distributor and the Adviser shall
reasonably request (including, without limitation, by permitting the
Fund, the Distributor and the Adviser to review the relevant books and
records of GWL&A) in order to facilitate review by the Fund, the
Distributor and the Adviser of any written submissions provided to it
or its assessment of the validity or amount of any claim against it
arising from such failure or alleged failure;
(f) GWL&A shall not with respect to any claim of the IRS or any
Contractowner that would give rise to a claim against the Fund, the
Distributor and the Adviser (i) compromise or settle any claim, (ii)
accept any adjustment on audit, or (iii) forego any allowable
administrative or judicial appeals, without the express written consent
of the Fund, the Distributor and the Adviser, which shall not be
unreasonably withheld; provided that, GWL&A shall not be required to
appeal any adverse judicial decision unless the Fund and the Adviser
shall have provided an opinion of independent counsel to the effect
that a reasonable basis exists for taking such appeal; and further
provided that the Fund, the Distributor and the Adviser shall bear the
costs and expenses, including reasonable attorney's fees, incurred by
GWL&A in complying with this clause (f).
ARTICLE VII. Potential Conflicts and Compliance With
Mixed and Shared Funding Exemptive Order
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance contract owners or by
contract owners of different Participating Insurance Companies; or (f) a
decision by a Participating Insurance Company to disregard the voting
instructions of contract owners. The Board shall promptly inform GWL&A if it
determines that an irreconcilable material conflict exists and the implications
thereof.
7.2. GWL&A will report any potential or existing conflicts of which it
is aware to the Board. GWL&A will assist the Board in carrying out its
responsibilities under the Mixed and Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an obligation
by GWL&A to inform the Board whenever contract owner voting instructions are to
be disregarded. Such responsibilities shall be carried out by GWL&A with a view
only to the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its directors who are not interested persons of the Fund, the Distributor, the
Adviser or any sub-adviser to any of the Designated Portfolios (the "Independent
Directors"), that a material irreconcilable conflict exists, GWL&A and other
Participating Insurance Companies shall, at their expense and to the extent
reasonably practicable (as determined by a majority of the Independent
Directors), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Designated Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected contract owners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision
by GWL&A to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, GWL&A may be
required, at the Fund's election, to withdraw the Account's investment in the
Fund and terminate this Agreement; provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Independent
Directors. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Adviser, the
Distributor and the Fund shall continue to accept and implement orders by GWL&A
for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to GWL&A conflicts with the
majority of other state regulators, then GWL&A will withdraw the Account's
investment in the Fund and terminate this Agreement within six months after the
Board informs GWL&A in writing that it has determined that such decision has
created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month
period, the Fund shall continue to accept and implement orders by GWL&A for the
purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium for the
Contracts. GWL&A shall not be required by Section 7.3 to establish a new funding
medium for the Contracts if an offer to do so has been declined by vote of a
majority of Contractowners affected by the irreconcilable material conflict. In
the event that the Board determines that any proposed action does not adequately
remedy any irreconcilable material conflict, then GWL&A will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs GWL&A in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the Independent Directors.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable: and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By GWL&A
8.1(a). GWL&A agrees to indemnify and hold harmless the Fund, the
Distributor and the Adviser and each of their respective officers and directors
or trustees and each person, if any, who controls the Fund, Distributor or
Adviser within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, expenses, damages and liabilities (including amounts paid in
settlement with the written consent of GWL&A) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration statement or
prospectus or SAI covering the Contracts or contained in the Contracts or
sales literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this Agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity
with information furnished in writing to GWL&A by or on behalf of the
Adviser, Distributor or Fund for use in the registration statement or
prospectus for the Contracts or in the Contracts or sales literature or
other promotional material (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or
other promotional material of the Fund not supplied by GWL&A
or persons under its control) or wrongful conduct of GWL&A or
persons under its control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, or sales literature or other promotional
material of the Fund, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such a
statement or omission was made in reliance upon information
furnished in writing to the Fund by or on behalf of GWLA; or
(iv) arise as a result of any failure by GWL&A to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by GWL&A in this Agreement
or arise out of or result from any other material breach of
this Agreement by GWL&A, including without limitation Section
2.11 and Section 6.7 hereof,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). GWL&A shall not be liable under this indemnification provision
with respect to any losses, claims, expenses, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
8.1(c). GWL&A shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified GWL&A in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify GWL&A of any such claim shall not relieve GWL&A
from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision,
except to the extent that GWL&A has been prejudiced by such failure to give
notice. In case any such action is brought against the Indemnified Parties,
GWL&A shall be entitled to participate, at its own expense, in the defense of
such action. GWL&A also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from GWL&A
to such party of GWL&A's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and GWL&A will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
8.1(d). The Indemnified Parties will promptly notify GWL&A of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund Shares or the Contracts or the operation of the
Fund.
8.2. Indemnification by the Adviser
8.2(a). The Adviser agrees to indemnify and hold harmless GWL&A and its
directors and officers and each person, if any, who controls GWL&A within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund's shares or the Contracts
and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature or other promotional material of the
Fund prepared by the Fund, the Distributor or the Adviser (or any amendment
or supplement to any of the foregoing), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, provided that this Agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Adviser, the Distributor or the
Fund by or on behalf of GWL&A for use in the registration statement,
prospectus or SAI for the Fund or in sales literature or other promotional
material (or any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the Contracts or the Fund
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or
other promotional material for the Contracts not supplied by
the Adviser or persons under its control) or wrongful conduct
of the Fund, the Distributor or the Adviser or persons under
their control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, or sales literature or other promotional
material covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished in writing to GWL&A by or on behalf
of the Adviser, the Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund, the Distributor
or the Adviser to provide the services and furnish the
materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise,
to comply with the diversification and other qualification
requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund, the
Distributor or the Adviser in this Agreement or arise out of
or result from any other material breach of this Agreement by
the Adviser, the Distributor or the Fund; or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting by the Fund, the Distributor or the
Adviser of the daily net asset value per share or dividend or
capital gain distribution rate;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Adviser specified in Article VI hereof.
8.2(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
8.2(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Adviser
has been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Adviser will be entitled to
participate, at its own expense, in the defense thereof. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Adviser will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
<PAGE>
8.2(d). GWL&A agrees to promptly notify the Adviser of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of the Contracts or the operation of the
Account.
8.3. Indemnification By the Fund
8.3(a). The Fund agrees to indemnify and hold harmless GWL&A and its
directors and officers and each person, if any, who controls GWL&A within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.3) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may be required to pay or become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages, liabilities or expenses (or actions in
respect thereof) or settlements, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in
good faith or otherwise, to comply with the diversification
and other qualification requirements specified in Article VI
of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
8.3(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve it from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision, except to the extent that the Fund has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund shall also be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). GWL&A each agrees to promptly notify the Fund of the
commencement of any litigation or proceeding against itself or any of its
respective officers or directors in connection with the Agreement, the issuance
or sale of the Contracts, the operation of the Account, or the sale or
acquisition of shares of the Fund.
8.4. Indemnification by the Distributor
8.4(a). The Distributor agrees to indemnify and hold harmless GWL&A and
its directors and officers and each person, if any, who controls GWL&A within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.4) against any and all losses, claims,
expenses, damages and liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation (including reasonable legal
and other expenses) to which the Indemnified Parties may become subject under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature or other promotional material of the
Fund prepared by the Fund, Adviser or Distributor (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this Agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Adviser, the Distributor or Fund by
or on behalf of GWL&A for use in the registration statement or SAI or
prospectus for the Fund or in sales literature or other promotional
material (or any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI, sales literature or
other promotional material for the Contracts not supplied by
the Distributor or persons under its control) or wrongful
conduct of the Fund, the Distributor or Adviser or persons
under their control, with respect to the sale or distribution
of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, sales literature or other promotional
material covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished in writing to GWL&A by or on behalf
of the Adviser, the Distributor or Fund; or
(iv) arise as a result of any failure by the Fund, Adviser or
Distributor to provide the services and furnish the materials
under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply
with the diversification and other qualification requirements
specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund, Adviser or
Distributor in this Agreement or arise out of or result from
any other material breach of this Agreement by the Fund,
Adviser or Distributor; or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting of the daily net asset value per
share or dividend or capital gain distribution rate;
as limited by and in accordance with the provisions of Sections 8.4(b) and
8.4(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
8.4(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance or such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
8.4(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision, except to the extent that the
Distributor has been prejudiced by such failure to give notice. In case any such
action is brought against the Indemnified Parties, the Distributor will be
entitled to participate, at its own expense, in the defense thereof. The
Distributor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Distributor
to such party of the Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.4(d) GWL&A agrees to promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Colorado,
without regard to the Colorado Conflict of Laws provisions.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with
respect to some or all Portfolios, upon six (6) months advance
written notice delivered to the other parties; provided,
however, that such notice shall not be given earlier than six
(6) months following the date of this Agreement; or
(b) at the option of GWL&A by written notice to the other
parties with respect to any Portfolio based upon GWL&A's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) at the option of GWL&A by written notice to the other
parties with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/ or federal law or such
law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by
GWL&A; or
(d) at the option of the Fund, Distributor or Adviser in the
event that formal administrative proceedings are instituted
against GWL&A by the NASD, the SEC, the Insurance Commissioner
or like official of any state or any other regulatory body
regarding GWL&A's duties under this Agreement or related to
the sale of the Contracts, the operation of any Account, or
the purchase of the Fund shares, if, in each case, the Fund,
Distributor or Adviser, as the case may be, reasonably
determines in its sole judgment exercised in good faith, that
any such administrative proceedings will have a material
adverse effect upon the ability of GWL&A to perform its
obligations under this Agreement; or
(e) at the option of GWL&A in the event that formal
administrative proceedings are instituted against the Fund,
the Distributor or the Adviser by the NASD, the SEC, or any
state securities or insurance department or any other
regulatory body, if GWL&A reasonably determines in its sole
judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the
ability of the Fund, the Distributor or the Adviser to perform
their obligations under this Agreement; or
(f) at the option of GWL&A by written notice to the Fund with
respect to any Portfolio if GWL&A reasonably believes that the
Portfolio will fail to meet the Section 817(h) diversification
requirements or Subchapter M qualifications specified in
Article VI hereof; or
(g) at the option of either the Fund, the Distributor or the
Adviser, if (i) the Fund, Distributor or Adviser,
respectively, shall determine, in its sole judgment reasonably
exercised in good faith, that GWL&A has suffered a material
adverse change in its business or financial condition or is
the subject of material adverse publicity and that material
adverse change or publicity will have a material adverse
impact on GWL&A's ability to perform its obligations under
this Agreement, (ii) the Fund, Distributor or Adviser notifies
GWL&A of that determination and its intent to terminate this
Agreement, and (iii) after considering the actions taken by
GWL&A and any other changes in circumstances since the giving
of such a notice, the determination of the Fund, Distributor
or Adviser shall continue to apply on the sixtieth (60th) day
following the giving of that notice, which sixtieth day shall
be the effective date of termination; or
(h) at the option of either GWL&A, if (i) GWL&A shall
determine, in its sole judgment reasonably exercised in good
faith, that the Fund, Distributor or Adviser has suffered a
material adverse change in its business or financial condition
or is the subject of material adverse publicity and that
material adverse change or publicity will have a material
adverse impact on the Fund's, Distributor's or Adviser's
ability to perform its obligations under this Agreement, (ii)
GWL&A notifies the Fund, Distributor or Adviser, as
appropriate, of that determination and its intent to terminate
this Agreement, and (iii) after considering the actions taken
by the Fund, Distributor or Adviser and any other changes in
circumstances since the giving of such a notice, the
determination of GWL&A shall continue to apply on the sixtieth
(60th) day following the giving of that notice, which sixtieth
day shall be the effective date of termination; or
(i) at the option of any non-defaulting party hereto in the
event of a material breach of this Agreement by any party
hereto (the "defaulting party") other than as described in
10.1(a)-(j); provided, that the non-defaulting party gives
written notice thereof to the defaulting party, with copies of
such notice to all other non-defaulting parties, and if such
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the non-defaulting
party giving such written notice may terminate this Agreement
by giving thirty (30) days written notice of termination to
the defaulting party.
10.2. Notice Requirement. No termination of this Agreement shall be
effective unless and until the party terminating this Agreement gives prior
written notice to all other parties of its intent to terminate, which
notice shall set forth the basis for the termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Article VII, or the provisions of Section 10.1(a), 10.1(g) or 10.1(h)
of this Agreement, the prior written notice shall be given in advance
of the effective date of termination as required by those provisions
unless such notice period is shortened by mutual written agreement of
the parties; (b) in the event any termination is based upon the
provisions of Section 10.1(d), 10.1(e), 10.1(i) or 10.1(j) of this
Agreement, the prior written notice shall be given at least sixty (60)
days before the effective date of termination; and (c) in the event any
termination is based upon the provisions of Section 10.1(b), 10.1(c) or
10.1(f), the prior written notice shall be given in advance of the
effective date of termination, which date shall be determined by the
party sending the notice.
10.3. Effect of Termination. Notwithstanding any termination of this
Agreement, other than as a result of a failure by either the Fund or GWL&A to
meet Section 817(h) of the Code diversification requirements, the Fund, the
Distributor and the Adviser shall, at the option of GWL&A, continue to make
available additional shares of the Designated Portfolio(s) pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Designated
Portfolio(s), redeem investments in the Designated Portfolio(s) and/or invest in
the Designated Portfolio(s) upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.3 shall not
apply to any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
10.3. Surviving Provisions. Notwithstanding any termination of this
Agreement, each party's obligations under Article VIII to indemnify other
parties shall survive and not be affected by any termination of this Agreement.
In addition, with respect to Existing Contracts, all provisions of this
Agreement shall also survive and not be affected by any termination of this
Agreement.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
XYZ Fund
Attention:
If to GWL&A:
Great-West Life & Annuity Insurance Company 8515 East Orchard Road
Englewood, CO 80111 Attention:
If to the Adviser:
XYZ Investment Adviser
Attention:
If to the Distributor:
XYZ Distributor
Attention:
<PAGE>
ARTICLE XII. Miscellaneous
12.1. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information may come into the
public domain. Without limiting the foregoing, no party hereto shall disclose
any information that another party has designated as proprietary.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Colorado Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of GWL&A are being conducted in a manner consistent with the Colorado
Variable Annuity Regulations and any other applicable law or regulations.
12.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto.
12.9. GWL&A is hereby expressly put on notice of the limitation of
liability as set forth in the Declarations of Trust of the Fund and agree that
the obligations assumed by the Fund, Distributor and the Adviser pursuant to
this Agreement shall be limited in any case to the Fund, Distributor and Adviser
and their respective assets and GWL&A shall not seek satisfaction of any such
obligation from the shareholders of the Fund, Distributor or the Adviser, the
Trustees, officers, employees or agents of the Fund, Distributor or Adviser, or
any of them.
12.10. The Fund, the Distributor and the Adviser agree that the
obligations assumed by GWL&A pursuant to this Agreement shall be limited in any
case to GWL&A and its assets and neither the Fund, Distributor nor Adviser shall
seek satisfaction of any such obligation from the shareholders of GWL&A, the
directors, officers, employees or agents of GWL&A, or any of them, except to the
extent permitted under this Agreement.
12.11. No provision of this Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or indemnifications, as
between the Adviser and the Fund, and the Distributor and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By its authorized officer,
By:______________________________
Title:
Date:
XYZ FUND
By its authorized officer,
By:______________________________
Title:
Date:
XYZ INVESTMENT ADVISER
By its authorized officer,
By:____________________________
Title:
Date:
XYZ DISTRIBUTOR
By its authorized officer,
By:____________________________
Title:
Date:
<PAGE>
SCHEDULE A
Contracts Form Numbers
<PAGE>
SCHEDULE B
Designated Portfolios
<PAGE>
SCHEDULE C
Reports per Section 6.6
With regard to the reports relating to the quarterly testing of
compliance with the requirements of Section 817(h) and Subchapter M under the
Internal Revenue Code (the "Code") and the regulations thereunder, the Fund
shall provide within twenty (20) Business Days of the close of the calendar
quarter a report to GWL&A in the Form C1 attached hereto and incorporated herein
by reference, regarding the status under such sections of the Code of the
Designated Portfolio(s), and if necessary, identification of any remedial action
to be taken to remedy non-compliance.
With regard to the reports relating to the year-end testing of
compliance with the requirements of Subchapter M of the Code, referred to
hereinafter as "RIC status," the Fund will provide the reports on the following
basis: (i) the last quarter's quarterly reports can be supplied within the
20-day period, and (ii) a year-end report will be provided 45 days after the end
of the calendar year. However, if a problem with regard to RIC status, as
defined below, is identified in the third quarter report, on a weekly basis,
starting the first week of December, additional interim reports will be provided
specially addressing the problems identified in the third quarter report. If any
interim report memorializes the cure of the problem, subsequent interim reports
will not be required.
A problem with regard to RIC status is defined as any violation of the
following standards, as referenced to the applicable sections of the Code:
(a) Less than ninety percent of gross income is derived from sources of
income specified in Section 851(b)(2);
(b) Thirty percent or greater gross income is derived from the sale or
disposition of assets specified in Section 851(b)(3);
(c) Less than fifty percent of the value of total assets consists of assets
specified in Section 851(b)(4)(A); and
(d) No more than twenty-five percent of the value of total assets is
invested in the securities of one issuer, as that requirement is set
forth in Section 851(b)(4)(B).
<PAGE>
FORM C1
CERTIFICATE OF COMPLIANCE
For the quarter ended:
I, , a duly authorized officer, director or agent of Fund hereby swear
and affirm that Fund is in compliance with all requirements of Section 817(h)
and Subchapter M of the Internal Revenue Code (the "Code") and the regulations
thereunder as required in the Fund Participation Agreement among Great-West Life
& Annuity Insurance Company, and other than the exceptions discussed below:
Exceptions Remedial Action
If no exception to report, please indicate
"None."
Signed this day of , .
(Signature)
By:
(Type or Print Name and Title/Position)
<PAGE>
SCHEDULE D
EXPENSES
The Fund and/or the Distributor and/or Adviser, and GWL&A will coordinate the
functions and pay the costs of completing these functions based upon an
allocation of costs in the tables below.
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Prospectus Printing of combined GWL&A Fund,
Distributor or
prospectuses
Adviser, as
applicable
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Fund, Distributor or GWL&A Fund,
Distributor or
Adviser shall supply
Adviser, as
GWL&A with such- numbers
applicable
of the Designated
Portfolio(s)
prospectus(es) as GWL&A
shall reasonably request
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to New and GWL&A GWL&A
Inforce Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to GWL&A GWL&A
Prospective Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Product Prospectus Printing for Inforce GWL&A GWL&A
Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Printing for Prospective GWL&A GWL&A
Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to New and GWL&A GWL&A
Inforce Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to GWL&A GWL&A
Prospective Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Prospectus If Required by Fund, Fund, Distributor or Fund,
Distributor or
Update & Distribution Distributor or Adviser Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Product Prospectus Update & If Required by Fund, GWL&A Fund,
Distributor or
Distribution Distributor or Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
<PAGE>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund SAI Printing Fund, Distributor or Fund,
Distributor or
Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Product SAI Printing GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Proxy Material for Mutual Printing if proxy Fund, Distributor or Fund,
Distributor or
Fund: required by Law Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution (including GWL&A Fund,
Distributor or
labor) if proxy required
Adviser
by Law
------------------------------ --------------------------- ---------------------------
----------------------
Printing & distribution GWL&A GWL&A
if required by GWL&A
============================== =========================== ===========================
======================
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Annual & Printing of combined GWL&A Fund,
Distributor or
Semi-Annual Report reports
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Other communication to New If Required by the Fund, GWL&A Fund,
Distributor or
and Prospective clients Distributor or Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Other communication to Distribution (including GWL&A Fund,
Distributor or
inforce labor and printing) if
Adviser
required by the Fund,
Distributor or Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution (including GWL&A GWL&A
labor and printing) if
required by GWL&A
============================== =========================== ===========================
======================
<PAGE>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
Errors in Share Price Cost of error to GWL&A Fund
or Adviser
calculation participants
------------------------------ --------------------------- ---------------------------
----------------------
Cost of administrative GWL&A Fund
or Adviser
work to correct error
------------------------------ --------------------------- ---------------------------
----------------------
Operations of the Fund All operations and Fund, Distributor or Fund
or Adviser
related expenses, Adviser
including the cost of
registration and
qualification of shares,
taxes on the issuance or
transfer of shares, cost
of management of the
business affairs of the
Fund, and expenses paid
or assumed by the fund
pursuant to any Rule
12b-1 plan
------------------------------ --------------------------- ---------------------------
----------------------
Operations of the Account Federal registration of GWL&A GWL&A
units of separate account
(24f-2 fees)
------------------------------ --------------------------- ---------------------------
----------------------
</TABLE>
<PAGE>
SCHEDULE E
TRADING AND NSCC NETWORKING AGREEMENT
<PAGE>
SCHEDULE F
ADMINISTRATIVE SERVICES
A. GWL&A, or an affiliate, will provide the properly registered and licensed
personnel and systems needed for all customer servicing and support - for
both fund and annuity information and questions - including:
responding to Contractowner inquiries; delivery of prospectus - both
fund and annuity; entry of initial and subsequent orders; transfer of
cash to insurance company and/or funds; explanations of fund objectives
and characteristics; entry of transfers between funds; fund balance and
allocation inquiries; mail fund prospectus.
B. GWL&A, or an affiliate, will communicate all purchase, withdrawal, and
exchange orders it receives from its customers to each Designated
Portfolio.
Administrative Service Fee
For the services, GWL&A or its affiliate shall receive a fee of x.xx% per annum
of the average aggregate daily net asset value of shares of the Designated
Portfolio(s) held in the Account, payable by the Adviser directly to GWL&A or
its affiliate. Such fee shall be paid in arrears quarterly. Each quarter's fee
shall be determined based on assets in the Account at the end of each quarter
and each quarterly fee will be independent of every other quarterly fee. Such
fee shall be due and payable automatically within 20 (twenty) days after the
last day of the quarter to which such payment relates.
The Fund will calculate and GWL&A will verify the asset balance for each day on
which the fee is to be paid pursuant to this Agreement with respect to each
Designated Portfolio.
<PAGE>
12b-1 Distribution Related Fees
The Adviser, or its designee, agrees to pay GWL&A or its affiliate a fee of
x.xx% per annum of the average aggregate daily net asset value of shares of the
Designated Portfolio(s) held in the Account. Such fee shall be paid in arrears,
quarterly. Each quarter's fee shall be determined based on assets in the Account
at the end of each quarter and each quarterly fee will be independent of every
other quarterly fee. Such fee shall be due and payable automatically within 20
(twenty) days after the last day of the quarter to which such payment relates.
<PAGE>
SCHEDULE G
NON-COMPETE PROVISIONS
GWL&A intends to offer Fund, Adviser and Distributor, as applicable, access to
their current and prospective customers hereinafter "Customers" so that
Customers will have the option of purchasing the Designated Portfolio shares of
the Fund. Fund, Adviser and Distributor, as applicable, desires to make the
Designated Portfolio(s) available to Customers, yet acknowledges that under
certain circumstances, the ability of Fund, Adviser or Distributor, as
applicable, to solicit business from Customers should be subject to special
limitations in exchange for the increased ability to offer its product through
GWL&A's introduction. An introduction will consist of GWL&A's inclusion of the
Designated Portfolio(s) in the deferred compensation product offered to a
Customer for that Customer's consideration.
1. In the scenario where GWL&A introduces Fund, Adviser or Distributor, as
applicable, in any manner to a Customer which ultimately purchases a
deferred compensation product from GWL&A, and GWL&A includes the Designated
Portfolio(s) in the products offered to that Customer, Fund, Adviser and
Distributor, as applicable, agree not to utilize any confidential
information regarding the Customer and/or its employees' participation in
plan(s) received in connection with offering its product to Customer in any
solicitation of Deferred Compensation Business from that Customer. Further,
Fund, Adviser and Distributor, as applicable, will not attempt to contact
Customers regularly nor attempt to sell its mutual funds directly to
Customer on a stand-alone basis while the Designated Portfolio(s) are
included in GWL&A's arrangement with the Customer. For purposes of this
Agreement "Deferred Compensation Business" includes, but is not limited to,
group or individual annuity contracts, GIC's, separate accounts and wrapped
or unwrapped mutual funds whether sold separately or in conjunction-with
each other.
2. In the scenario where GWL&A introduces Distributor in any manner to a
Customer which does not purchase a deferred compensation product from
GWL&A, Distributor is not subject to any prohibitions regarding sales to
and communications with that Customer. Likewise, there are no prohibitions
where GWL&A provides no introduction.
GWL&A may decide in its discretion when it desires to provide an introduction to
one of its Customers. GWL&A has no obligation to provide introductions to its
Customers.
<PAGE>
FUND PARTICIPATION AGREEMENT
Sample Agreement for Retail Funds
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
ARTICLE I. Sale of Fund
Shares.......................................................................
ARTICLE II. Representations and
Warranties............................................................
ARTICLE III. Prospectuses and Proxy Statements;
Voting.................................................
ARTICLE IV. Sales Material and
Information............................................................
ARTICLE V. Fees and
Expenses.........................................................................
ARTICLE VI.
Qualification.............................................................................
ARTICLE VII. Indemnification
..........................................................................
ARTICLE XIII. Applicable
Law............................................................................
ARTICLE IX.
Termination...............................................................................
ARTICLE X.
Notices...................................................................................
ARTICLE XI.
Miscellaneous.............................................................................
SCHEDULE A Designated
Portfolios.....................................................................
SCHEDULE B Reports per Section
6.4...................................................................
SCHEDULE C
Expenses..................................................................................
SCHEDULE D Trading and NSCC Networking
Agreement.....................................................
SCHEDULE E Administrative
Services...................................................................
SCHEDULE F Non-Compete
Provisions....................................................................
</TABLE>
<PAGE>
FUND PARTICIPATION AGREEMENT
<PAGE>
Among
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
XYZ FUNDS,
XYZ INVESTMENT ADVISER,
and
XYZ DISTRIBUTOR
THIS AGREEMENT, made and entered into as of this ____ day of
_______________, 2000 by and among GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
(hereinafter "GWL&A"), a Colorado life insurance company, on its own behalf and
on behalf of its Separate Account FutureFunds Series Account (the "Account");
XYZ FUND, a organized under the laws of (hereinafter the "Fund"); XYZ INVESTMENT
ADVISER (hereinafter the "Adviser"), a organized under the laws of ; and XYZ
DISTRIBUTOR, a organized under the laws of (hereinafter the "Distributor").
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts (collectively, the "Variable Insurance Products") to
be offered by insurance companies, including GWL&A, which have entered into
participation agreements similar to this Agreement (hereinafter "Participating
Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolio(s) are registered under
the Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws; and
WHEREAS, the Distributor is duly registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, GWL&A has registered certain variable annuity contracts
supported wholly or partially by the Account (the "Contracts") under the 1933
Act; and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of GWL&A,
under the insurance laws of the State of Colorado, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, GWL&A has registered the Account as a unit investment trust
under the 1940 Act and has registered the securities deemed to be issued by the
Account under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, GWL&A intends to purchase shares in the Portfolio(s) listed in
Schedule A attached hereto and incorporated herein by reference, as such
Schedule may be amended from time to time by mutual written agreement (the
"Designated Portfolio(s)"), on behalf of the Account to fund the Contracts, and
the Fund is authorized to sell such shares to unit investment trusts such as the
Account at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Account also intends to purchase shares in other open-end
investment companies or series thereof not affiliated with the Fund (the
"Unaffiliated Funds") on behalf of the Account to fund the Contracts; and
NOW, THEREFORE, in consideration of their mutual promises, GWL&A, the
Fund, the Distributor and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. All purchases, redemptions and exchanges of Designated Portfolio
shares by GWL&A on behalf of the Account, in addition to the pricing and
correction thereof, of Designated Portfolio shares, shall be governed by and
subject to the terms of the Trading and NSCC Networking Agreement, attached
hereto as Schedule D.
1.2 Notwithstanding Section 1.1 hereof, if an adjustment is necessary
to correct an error which has caused Contract owners to receive less than the
amount to which they are entitled, the number of shares of the applicable
sub-account of such Contract owners will be adjusted and the amount of any
underpayments shall be credited by the Adviser to GWL&A for crediting of such
amounts to the applicable Contract owners accounts. Upon notification by the
Adviser of any overpayment due to an error, GWL&A shall promptly remit to
Adviser any overpayment that has not been paid to Contract owners; however,
Adviser acknowledges that GWL&A does not intend to seek additional payments from
any Contract owner who, because of a pricing error, may have underpaid for units
of interest credited to his/her account. In no event shall GWL&A be liable to
Contract owners for any such adjustments or underpayment amounts.
<PAGE>
ARTICLE II. Representations and Warranties
2.1. GWL&A represents and warrants that the Contracts and the
securities deemed to be issued by the Account under the Contracts are or will be
registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. GWL&A further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established the Account prior
to any issuance or sale of units thereof as a segregated asset account under
Section 10-7-401, et. seq. of the Colorado Insurance Law and has registered the
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the Contracts and that it
will maintain such registration for so long as any Contracts are outstanding as
required by applicable law.
2.2. The Fund represents and warrants that Designated Portfolio(s)
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold in compliance with all applicable federal
securities laws including without limitation the 1933 Act, the 1934 Act, and the
1940 Act and that the Fund is and shall remain registered under the 1940 Act.
The Fund shall amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares.
2.3. The Fund reserves the right to adopt a plan pursuant to Rule 12b-1
under the 1940 Act and to impose an asset-based or other charge to finance
distribution expenses as permitted by applicable law and regulation. In any
event, the Fund and Adviser agree to comply with applicable provisions and SEC
staff interpretations of the 1940 Act to assure that the investment advisory or
management fees paid to the Adviser by the Fund are in accordance with the
requirements of the 1940 Act. To the extent that the Fund decides to finance
distribution expenses pursuant to Rule 12b-1, the Fund undertakes to have its
Board, a majority of whom are not interested persons of the Fund, formulate and
approve any plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses.
2.4. The Fund represents and warrants that it will make every effort to
ensure that the investment policies, fees and expenses of the Designated
Portfolio(s) are and shall at all times remain in compliance with the insurance
and other applicable laws of the State of Colorado and any other applicable
state to the extent required to perform this Agreement.
2.5. The Fund represents and warrants that it is lawfully organized and
validly existing under the laws of the State of and that it does and
will comply in all material respects with the 1940 Act.
2.6. The Adviser represents and warrants that it is and shall remain
duly registered under all applicable federal and state securities laws and that
it shall perform its obligations for the Fund in compliance in all material
respects with the laws of the State of and any applicable state and federal
securities laws.
2.7. The Distributor represents and warrants that it is and shall
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance in all
material respects with the laws of the State of and any applicable state and
federal securities laws.
2.8. The Fund and the Adviser represent and warrant that all of their
respective officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Fund are, and shall
continue to be at all times, covered by one or more blanket fidelity bonds or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage required by Rule 17g-1 under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bonds shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
2.9. The Fund will provide GWL&A with as much advance notice as is
reasonably practicable of any material change affecting the Designated
Portfolio(s) (including, but not limited to, any material change in the
registration statement or prospectus affecting the Designated Portfolio(s)) and
any proxy solicitation affecting the Designated Portfolio(s) and consult with
GWL&A in order to implement any such change in an orderly manner, recognizing
the expenses of changes and attempting to minimize such expenses by implementing
them in conjunction with regular annual updates of the prospectus for the
Contracts. The Fund agrees to share equitably in expenses incurred by GWL&A as a
result of actions taken by the Fund, consistent with the allocation of expenses
contained in Schedule C attached hereto and incorporated herein by reference.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Adviser or Distributor shall provide GWL&A
with as many copies of the Fund's current prospectus for the Designated
Portfolio(s) as GWL&A may reasonably request for marketing purposes (including
distribution to Contract owners with respect to new sales of a Contract), with
expenses to be borne in accordance with Schedule C hereof. If requested by GWL&A
in lieu thereof, the Adviser, Distributor or Fund shall provide such
documentation (including a camera-ready copy and computer diskette of the
current prospectus for the Designated Portfolio(s)) and other assistance as is
reasonably necessary in order for GWL&A once each year (or more frequently if
the prospectuses for the Designated Portfolio(s) are amended) to have the
prospectus for the Contracts and the Fund's prospectus for the Designated
Portfolio(s) printed together in one document. The Fund and Adviser agree that
the prospectus (and semi-annual and annual reports) for the Designated
Portfolio(s) will describe only the Designated Portfolio(s) and will not name or
describe any other portfolios or series that may be in the Fund unless required
by law.
3.2. If applicable state or federal laws or regulations require that
the Statement of Additional Information ("SAI") for the Fund be distributed to
all Contract owners, then the Fund, Distributor and/or the Adviser shall provide
GWL&A with copies of the Fund's SAI or documentation thereof for the Designated
Portfolio(s) in such quantities, with expenses to be borne in accordance with
Schedule C hereof, as GWL&A may reasonably require to permit timely distribution
thereof to Contract owners. The Adviser, Distributor and/or the Fund shall also
provide SAIs to any Contract owner or prospective owner who requests such SAI
from the Fund (although it is anticipated that such requests will be made to
GWL&A).
3.3. The Fund, Distributor and/or Adviser shall provide GWL&A with
copies of the Fund's proxy material, reports to stockholders and other
communications to stockholders for the Designated Portfolio(s) in such quantity,
with expenses to be borne in accordance with Schedule C hereof, as GWL&A may
reasonably require to permit timely distribution thereof to Contract owners.
3.4. It is understood and agreed that, except with respect to
information regarding GWL&A provided in writing by that party, GWL&A is not
responsible for the content of the prospectus or SAI for the Designated
Portfolio(s). It is also understood and agreed that, except with respect to
information regarding the Fund, the Distributor, the Adviser or the Designated
Portfolio(s) provided in writing by the Fund, the Distributor or the Adviser,
neither the Fund, the Distributor nor Adviser are responsible for the content of
the prospectus or SAI for the Contracts.
3.5. If and to the extent required by law GWL&A shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Designated Portfolio(s) shares held in the Account in
accordance with instructions received from Contract owners: and
(iii) vote Designated Portfolio shares held in the Account
for which no instructions have been received in the
same proportion as Designated Portfolio(s) shares for
which instructions have been received from Contract
owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract
owners. GWL&A reserves the right to vote Fund shares
held in any segregated asset account in its own
right, to the extent permitted by law.
3.6. GWL&A shall be responsible for assuring that each of its separate
accounts holding shares of a Designated Portfolio calculates voting privileges
as directed by the Fund and agreed to by GWL&A and the Fund.
3.7. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the
Commission may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. GWL&A shall furnish, or shall cause to be furnished, to the Fund
or its designee, a copy of each piece of sales literature or other promotional
material that GWL&A, respectively, develops or proposes to use and in which the
Fund (or a Portfolio thereof), its Adviser or one of its sub-advisers or the
Distributor is named in connection with the Contracts, at least ten (10)
business days prior to its use. No such material shall be used if the Fund
objects to such use within five (5) business days after receipt of such
material.
4.2. GWL&A shall not give any information or make any representations
or statements on behalf of the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement, prospectus or SAI for the Fund shares, as the same may be amended or
supplemented from time to time, or in sales literature or other promotional
material approved by the Fund, Distributor or Adviser, except with the
permission of the Fund, Distributor or Adviser.
4.3. The Fund or the Adviser shall furnish, or shall cause to be
furnished, to GWL&A, a copy of each piece of sales literature or other
promotional material in which GWL&A and/or its separate account(s), is named at
least ten (10) business days prior to its use. No such material shall be used if
GWL&A objects to such use within five (5) business days after receipt of such
material.
4.4. The Fund, the Distributor and the Adviser shall not give any
information or make any representations on behalf of GWL&A or concerning GWL&A,
the Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus or SAI for the Contracts, as
the same may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by GWL&A or its designee,
except with the permission of GWL&A.
4.5. The Fund will provide to GWL&A at least one complete copy of all
registration statements, prospectuses, SAIs, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Designated
Portfolio(s), contemporaneously with the filing of such document(s) with the SEC
or NASD or other regulatory authorities.
4.6. For purposes of Articles IV and VII, the phrase "sales literature
and other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media; e.g.,
on-line networks such as the Internet or other electronic media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the NASD rules, the
1933 Act or the 1940 Act.
4.7. At the request of any party to this Agreement, each other party
will make available to the other party's independent auditors and/or
representative of the appropriate regulatory agencies, all records, data and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund and the Adviser will pay certain fees in accordance with
Schedule E hereof. In addition, the parties will bear certain expenses in
accordance with Schedule C, Articles III, V, and other provisions of this
Agreement.
5.2. All expenses incident to performance by the Fund, the Distributor
and the Adviser under this Agreement shall be paid by the appropriate party, as
further provided in Schedule C. The Fund shall see to it that all shares of the
Designated Portfolio(s) are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent required, in accordance
with applicable state laws prior to their sale.
5.3. The parties shall bear the expenses of routine annual distribution
(mailing costs) of the Fund's prospectus and distribution (mailing costs) of the
Fund's proxy materials and reports to owners of Contracts offered by GWL&A, in
accordance with Schedule C.
5.4. The Fund, the Distributor and the Adviser acknowledge that a
principal feature of the Contracts is the Contract owner's ability to choose
from a number of Unaffiliated Funds (and portfolios or series thereof),
including the Designated Portfolio(s) and the Unaffiliated Funds, and to
transfer the Contract's cash value between funds and portfolios. The Fund, the
Distributor and the Adviser agree to cooperate with GWL&A in facilitating the
operation of the Account and the Contracts as described in the prospectus for
the Contracts, including but not limited to cooperation in facilitating
transfers between Unaffiliated Funds.
ARTICLE VI. Qualification
6.1. The Fund, the Distributor and the Adviser represent and warrant
that the Fund and each Designated Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and that each Designated Portfolio will maintain
such qualification (under Subchapter M or any successor or similar provisions)
as long as this Agreement is in effect.
6.2. The Fund, Distributor or Adviser will notify GWL&A immediately
upon having a reasonable basis for believing that the Fund or any Designated
Portfolio has ceased to comply with the aforesaid Subchapter M qualification
requirements or might not so comply in the future.
6.3. Without in any way limiting the effect of Sections 7.2, 7.3 and
7.4 hereof and without in any way limiting or restricting any other remedies
available to GWL&A, the Adviser or Distributor will pay all costs associated
with or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of the Fund or any Designated Portfolio to comply with Section 6.1
hereof, including all costs associated with reasonable and appropriate
corrections or responses to any such failure; such costs may include, but are
not limited to, the costs involved in creating, organizing, and registering a
new investment company as a funding medium for the Contracts and/or the costs of
obtaining whatever regulatory authorizations are required to substitute shares
of another investment company for those of the failed Portfolio (including but
not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs
are to include, but are not limited to, fees and expenses of legal counsel and
other advisors to GWL&A and any federal income taxes or tax penalties and
interest thereon (or "toll charges" or exactments or amounts paid in settlement)
incurred by GWL&A with respect to itself or owners of its Contracts in
connection with any such failure or anticipated or reasonably foreseeable
failure.
6.4. The Fund at the Fund's expense shall provide GWL&A or its designee
with reports certifying compliance with the aforesaid Subchapter M qualification
requirements, at the times provided for and substantially in the form attached
hereto as Schedule B and incorporated herein by reference; provided, however,
that providing such reports does not relieve the Fund of its responsibility for
such compliance or of its liability for any non-compliance.
ARTICLE VII. Indemnification
7.1. Indemnification By GWL&A
7.1(a). GWL&A agrees to indemnify and hold harmless the Fund, the
Distributor and the Adviser and each of their respective officers and directors
or trustees and each person, if any, who controls the Fund, Distributor or
Adviser within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.1) against any and all
losses, claims, expenses, damages and liabilities (including amounts paid in
settlement with the written consent of GWL&A) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration statement or
prospectus or SAI covering the Contracts or contained in the Contracts or
sales literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this Agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity
with information furnished in writing to GWL&A by or on behalf of the
Adviser, Distributor or Fund for use in the registration statement or
prospectus for the Contracts or in the Contracts or sales literature or
other promotional material (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or
other promotional material of the Fund not supplied by GWL&A
or persons under its control) or wrongful conduct of GWL&A or
persons under its control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, or sales literature or other promotional
material of the Fund, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such a
statement or omission was made in reliance upon information
furnished in writing to the Fund by or on behalf of GWL&A; or
(iv) arise as a result of any failure by GWL&A to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by GWL&A in this Agreement
or arise out of or result from any other material breach of
this Agreement by GWL&A.
as limited by and in accordance with the provisions of Sections 7.1(b) and
7.1(c) hereof.
7.1(b). GWL&A shall not be liable under this indemnification provision
with respect to any losses, claims, expenses, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
7.1(c). GWL&A shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified GWL&A in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify GWL&A of any such claim shall not relieve GWL&A
from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision,
except to the extent that GWL&A has been prejudiced by such failure to give
notice. In case any such action is brought against the Indemnified Parties,
GWL&A shall be entitled to participate, at its own expense, in the defense of
such action. GWL&A also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from GWL&A
to such party of GWL&A's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and GWL&A will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
7.1(d). The Indemnified Parties will promptly notify GWL&A of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund Shares or the Contracts or the operation of the
Fund.
7.2. Indemnification by the Adviser
7.2(a). The Adviser agrees to indemnify and hold harmless GWL&A and its
directors and officers and each person, if any, who controls GWL&A within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 7.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund's shares or the Contracts
and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature or other promotional material of the
Fund prepared by the Fund, the Distributor or the Adviser (or any amendment
or supplement to any of the foregoing), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, provided that this Agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Adviser, the Distributor or the
Fund by or on behalf of GWL&A for use in the registration statement,
prospectus or SAI for the Fund or in sales literature or other promotional
material (or any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the Contracts or the Fund
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or
other promotional material for the Contracts not supplied by
the Adviser or persons under its control) or wrongful conduct
of the Fund, the Distributor or the Adviser or persons under
their control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, or sales literature or other promotional
material covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished in writing to GWL&A by or on behalf
of the Adviser, the Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund, the Distributor
or the Adviser to provide the services and furnish the
materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise,
to comply with the qualification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund, the
Distributor or the Adviser in this Agreement or arise out of
or result from any other material breach of this Agreement by
the Adviser, the Distributor or the Fund; or
(vii) arise out of or result from the incorrect or untimely
calculation or reporting by the Fund, the Distributor or the
Adviser of the daily net asset value per share or dividend or
capital gain distribution rate;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Adviser specified in Article VI hereof.
7.2(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
7.2(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Adviser
has been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Adviser will be entitled to
participate, at its own expense, in the defense thereof. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Adviser will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
<PAGE>
7.2(d). GWL&A agrees to promptly notify the Adviser of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of the Contracts or the operation of the
Account.
7.3. Indemnification By the Fund
7.3(a). The Fund agrees to indemnify and hold harmless GWL&A and its
directors and officers and each person, if any, who controls GWL&A within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 7.3) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may be required to pay or become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages, liabilities or expenses (or actions in
respect thereof) or settlements, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in
good faith or otherwise, to comply with the qualification
requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b) and
7.3(c) hereof.
7.3(b). The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
7.3(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve it from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision, except to the extent that the Fund has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund shall also be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
7.3(d). GWL&A agrees to promptly notify the Fund of the commencement of
any litigation or proceeding against itself or any of its respective officers or
directors in connection with the Agreement, the issuance or sale of the
Contracts, the operation of the Account, or the sale or acquisition of shares of
the Fund.
<PAGE>
7.4. Indemnification by the Distributor
7.4(a). The Distributor agrees to indemnify and hold harmless GWL&A and
its directors and officers and each person, if any, who controls GWL&A within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.4) against any and all losses, claims,
expenses, damages and liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation (including reasonable legal
and other expenses) to which the Indemnified Parties may become subject under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature or other promotional material of the
Fund prepared by the Fund, Adviser or Distributor (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this Agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Adviser, the Distributor or Fund by
or on behalf of GWL&A for use in the registration statement or SAI or
prospectus for the Fund or in sales literature or other promotional
material (or any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI, sales literature or
other promotional material for the Contracts not supplied by
the Distributor or persons under its control) or wrongful
conduct of the Fund, the Distributor or Adviser or persons
under their control, with respect to the sale or distribution
of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, SAI, sales literature or other promotional
material covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished in writing to GWL&A by or on behalf
of the Adviser, the Distributor or Fund; or
(iv) arise as a result of any failure by the Fund, Adviser or
Distributor to provide the services and furnish the materials
under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply
with the qualification requirements specified in Article VI of
this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund, Adviser or
Distributor in this Agreement or arise out of or result from
any other material breach of this Agreement by the Fund,
Adviser or Distributor; or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting of the daily net asset value per
share or dividend or capital gain distribution rate;
as limited by and in accordance with the provisions of Sections 7.4(b) and
7.4(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
7.4(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance or such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
7.4(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision, except to the extent that the
Distributor has been prejudiced by such failure to give notice. In case any such
action is brought against the Indemnified Parties, the Distributor will be
entitled to participate, at its own expense, in the defense thereof. The
Distributor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Distributor
to such party of the Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
7.4(d) GWL&A agrees to promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE XIII. Applicable Law
8.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Colorado,
without regard to the Colorado Conflict of Laws provisions.
8.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE IX. Termination
9.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with
respect to some or all Portfolios, upon six (6) months advance
written notice delivered to the other parties; provided,
however, that such notice shall not be given earlier than six
(6) months following the date of this Agreement; or
(b) at the option of GWL&A by written notice to the other
parties with respect to any Portfolio based upon GWL&A's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) at the option of GWL&A by written notice to the other
parties with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/ or federal law or such
law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by
GWL&A; or
(d) at the option of the Fund, Distributor or Adviser in the
event that formal administrative proceedings are instituted
against GWL&A by the NASD, the SEC, the Insurance Commissioner
or like official of any state or any other regulatory body
regarding GWL&A's duties under this Agreement or related to
the sale of the Contracts, the operation of any Account, or
the purchase of the Fund shares, if, in each case, the Fund,
Distributor or Adviser, as the case may be, reasonably
determines in its sole judgment exercised in good faith, that
any such administrative proceedings will have a material
adverse effect upon the ability of GWL&A to perform its
obligations under this Agreement; or
(e) at the option of GWL&A in the event that formal
administrative proceedings are instituted against the Fund,
the Distributor or the Adviser by the NASD, the SEC, or any
state securities or insurance department or any other
regulatory body, if GWL&A reasonably determines in its sole
judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the
ability of the Fund, the Distributor or the Adviser to perform
their obligations under this Agreement; or
(f) at the option of GWL&A by written notice to the Fund with
respect to any Portfolio if GWL&A reasonably believes that the
Portfolio will fail to meet the Subchapter M qualifications
specified in Article VI hereof; or
(g) at the option of either the Fund, the Distributor or the
Adviser, if (i) the Fund, Distributor or Adviser,
respectively, shall determine, in its sole judgment reasonably
exercised in good faith, that GWL&A has suffered a material
adverse change in its business or financial condition or is
the subject of material adverse publicity and that material
adverse change or publicity will have a material adverse
impact on GWL&A's ability to perform its obligations under
this Agreement, (ii) the Fund, Distributor or Adviser notifies
GWL&A of that determination and its intent to terminate this
Agreement, and (iii) after considering the actions taken by
GWL&A and any other changes in circumstances since the giving
of such a notice, the determination of the Fund, Distributor
or Adviser shall continue to apply on the sixtieth (60th) day
following the giving of that notice, which sixtieth day shall
be the effective date of termination; or
(h) at the option of either GWL&A, if (i) GWL&A shall
determine, in its sole judgment reasonably exercised in good
faith, that the Fund, Distributor or Adviser has suffered a
material adverse change in its business or financial condition
or is the subject of material adverse publicity and that
material adverse change or publicity will have a material
adverse impact on the Fund's, Distributor's or Adviser's
ability to perform its obligations under this Agreement, (ii)
GWL&A notifies the Fund, Distributor or Adviser, as
appropriate, of that determination and its intent to terminate
this Agreement, and (iii) after considering the actions taken
by the Fund, Distributor or Adviser and any other changes in
circumstances since the giving of such a notice, the
determination of GWL&A shall continue to apply on the sixtieth
(60th) day following the giving of that notice, which sixtieth
day shall be the effective date of termination; or
(i) at the option of any non-defaulting party hereto in the
event of a material breach of this Agreement by any party
hereto (the "defaulting party") other than as described in
9.1(a)-(j); provided, that the non-defaulting party gives
written notice thereof to the defaulting party, with copies of
such notice to all other non-defaulting parties, and if such
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the non-defaulting
party giving such written notice may terminate this Agreement
by giving thirty (30) days written notice of termination to
the defaulting party.
9.2. Notice Requirement. No termination of this Agreement shall be
effective unless and until the party terminating this Agreement gives prior
written notice to all other parties of its intent to terminate, which
notice shall set forth the basis for the termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Section 9.1(a), 9.1(g) or 9.1(h) of this Agreement, the prior written
notice shall be given in advance of the effective date of termination
as required by those provisions unless such notice period is shortened
by mutual written agreement of the parties; (b) in the event any
termination is based upon the provisions of Section 9.1(d), 9.1(e),
9.1(i) or 9.1(j) of this Agreement, the prior written notice shall be
given at least sixty (60) days before the effective date of
termination; and (c) in the event any termination is based upon the
provisions of Section 9.1(b), 9.1(c) or 9.1(f), the prior written
notice shall be given in advance of the effective date of termination,
which date shall be determined by the party sending the notice.
9.3. Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund, the Distributor and the Adviser shall, at the option of
GWL&A, continue to make available additional shares of the Designated
Portfolio(s) pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Designated Portfolio(s), redeem investments in the
Designated Portfolio(s) and/or invest in the Designated Portfolio(s) upon the
making of additional purchase payments under the Existing Contracts.
9.4. Surviving Provisions. Notwithstanding any termination of this
Agreement, each party's obligations under Article VII to indemnify other parties
shall survive and not be affected by any termination of this Agreement. In
addition, with respect to Existing Contracts, all provisions of this Agreement
shall also survive and not be affected by any termination of this Agreement.
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
XYZ Fund
Attention:
If to GWL&A:
Great-West Life & Annuity Insurance Company 8515 East Orchard Road
Englewood, CO 80111 Attention:
If to the Adviser:
XYZ Investment Adviser
Attention:
If to the Distributor:
XYZ Distributor
Attention:
<PAGE>
ARTICLE XI. Miscellaneous
11.1. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information may come into the
public domain. Without limiting the foregoing, no party hereto shall disclose
any information that another party has designated as proprietary.
11.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
11.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
11.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Colorado Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of GWL&A are being conducted in a manner consistent with the Colorado
Variable Annuity Regulations and any other applicable law or regulations.
11.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
11.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
11.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto, except to an affiliate of such party.
11.9. GWL&A is hereby expressly put on notice of the limitation of
liability as set forth in the Declarations of Trust of the Fund and agree that
the obligations assumed by the Fund, Distributor and the Adviser pursuant to
this Agreement shall be limited in any case to the Fund, Distributor and Adviser
and their respective assets and GWL&A shall not seek satisfaction of any such
obligation from the shareholders of the Fund, Distributor or the Adviser, the
Trustees, officers, employees or agents of the Fund, Distributor or Adviser, or
any of them.
11.10. The Fund, the Distributor and the Adviser agree that the
obligations assumed by GWL&A pursuant to this Agreement shall be limited in any
case to GWL&A and its assets and neither the Fund, Distributor nor Adviser shall
seek satisfaction of any such obligation from the shareholders of GWL&A, the
directors, officers, employees or agents of GWL&A, or any of them, except to the
extent permitted under this Agreement.
11.11. No provision of this Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or indemnifications, as
between the Adviser and the Fund, and the Distributor and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified below.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By its authorized officer,
By:______________________________
Title:
Date:
XYZ FUND
By its authorized officer,
By:______________________________
Title:
Date:
XYZ INVESTMENT ADVISER
By its authorized officer,
By:____________________________
Title:
Date:
XYZ DISTRIBUTOR
By its authorized officer,
By:____________________________
Title:
Date:
<PAGE>
SCHEDULE A
Designated Portfolios
<PAGE>
SCHEDULE B
Reports per Section 6.4
With regard to the reports relating to the quarterly testing of
compliance with the requirements of Subchapter M under the Code and the
regulations thereunder, the Fund shall provide within twenty (20) Business Days
of the close of the calendar quarter a report to GWL&A in the Form B1 attached
hereto and incorporated herein by reference, regarding the status under such
sections of the Code of the Designated Portfolio(s), and if necessary,
identification of any remedial action to be taken to remedy non-compliance.
With regard to the reports relating to the year-end testing of
compliance with the requirements of Subchapter M of the Code, referred to
hereinafter as "RIC status," the Fund will provide the reports on the following
basis: (i) the last quarter's quarterly reports can be supplied within the
20-day period, and (ii) a year-end report will be provided 45 days after the end
of the calendar year. However, if a problem with regard to RIC status, as
defined below, is identified in the third quarter report, on a weekly basis,
starting the first week of December, additional interim reports will be provided
specially addressing the problems identified in the third quarter report. If any
interim report memorializes the cure of the problem, subsequent interim reports
will not be required.
A problem with regard to RIC status is defined as any
violation of the following standards, as referenced to the applicable sections
of the Code:
(a) Less than ninety percent of gross income is derived from sources of
income specified in Section 851(b)(2);
(b) Less than fifty percent of the value of total assets consists of assets
specified in Section 851(b)(3)(A); and
(c) No more than twenty-five percent of the value of total assets is
invested in the securities of one issuer, as that requirement is set
forth in Section 851(b)(3)(B).
<PAGE>
FORM B1
CERTIFICATE OF COMPLIANCE
For the quarter ended:
I, , a duly authorized officer, director or agent of Fund hereby swear
and affirm that Fund is in compliance with all requirements of Subchapter M of
the Code and the regulations thereunder as required in the Fund Participation
Agreement among Great-West Life & Annuity Insurance Company, and
other than the exceptions discussed below:
Exceptions Remedial Action
If no exception to report, please indicate
"None."
Signed this day of , .
(Signature)
By:
(Type or Print Name and Title/Position)
<PAGE>
SCHEDULE C
EXPENSES
The Fund and/or the Distributor and/or Adviser, and GWL&A will coordinate the
functions and pay the costs of completing these functions based upon an
allocation of costs in the tables below.
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Prospectus Printing of combined GWL&A Fund,
Distributor or
prospectuses
Adviser, as
applicable
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Fund, Distributor or GWL&A Fund,
Distributor or
Adviser shall supply
Adviser, as
GWL&A with such- numbers
applicable
of the Designated
Portfolio(s)
prospectus(es) as GWL&A
shall reasonably request
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to Clients GWL&A Fund,
Distributor or
in connection with
Adviser, as
initial rollout of Fund
applicable
in connection with the
Contracts
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to New and GWL&A GWL&A
Inforce Clients other
than as above
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to GWL&A GWL&A
Prospective Clients other
than as above
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Product Prospectus Printing for Inforce GWL&A GWL&A
Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Printing for Prospective GWL&A GWL&A
Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to New and GWL&A GWL&A
Inforce Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Distribution to GWL&A GWL&A
Prospective Clients
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Prospectus If Required by Fund, Fund, Distributor or Fund,
Distributor or
Update & Distribution Distributor or Adviser Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Product Prospectus Update & If Required by Fund, GWL&A Fund,
Distributor or
Distribution Distributor or Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
<PAGE>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund SAI Printing Fund, Distributor or Fund,
Distributor or
Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Product SAI Printing GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Proxy Material for Mutual Printing if proxy Fund, Distributor or Fund,
Distributor or
Fund: required by Law Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution (including GWL&A Fund,
Distributor or
labor) if proxy required
Adviser
by Law
------------------------------ --------------------------- ---------------------------
----------------------
Printing & distribution GWL&A GWL&A
if required by GWL&A
============================== =========================== ===========================
======================
------------------------------ --------------------------- ---------------------------
----------------------
Mutual Fund Annual & Printing of combined GWL&A Fund,
Distributor or
Semi-Annual Report reports
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Other communication to New If Required by the Fund, GWL&A Fund,
Distributor or
and Prospective clients Distributor or Adviser
Adviser
------------------------------ --------------------------- ---------------------------
----------------------
If Required by GWL&A GWL&A GWL&A
------------------------------ --------------------------- ---------------------------
----------------------
Other communication to Distribution (including GWL&A Fund,
Distributor or
inforce labor and printing) if
Adviser
required by the Fund,
Distributor or Adviser
------------------------------ --------------------------- ---------------------------
----------------------
Distribution (including GWL&A GWL&A
labor and printing) if
required by GWL&A
============================== =========================== ===========================
======================
<PAGE>
------------------------------ --------------------------- ---------------------------
----------------------
Item Function Party Responsible for Party
Responsible
Coordination for
Expense
------------------------------ --------------------------- ---------------------------
----------------------
Errors in Share Price Cost of error to GWL&A Fund
or Adviser
calculation participants
------------------------------ --------------------------- ---------------------------
----------------------
Cost of administrative GWL&A Fund
or Adviser
work to correct error
------------------------------ --------------------------- ---------------------------
----------------------
Operations of the Fund All operations and Fund, Distributor or Fund
or Adviser
related expenses, Adviser
including the cost of
registration and
qualification of shares,
taxes on the issuance or
transfer of shares, cost
of management of the
business affairs of the
Fund, and expenses paid
or assumed by the fund
pursuant to any Rule
12b-1 plan
------------------------------ --------------------------- ---------------------------
----------------------
Substitution Orders Application for, and GWL&A Fund
or Adviser
implementation of
(including necessary
printing and mailings),
substitution orders
required as a result of
Fund action
------------------------------ --------------------------- ---------------------------
----------------------
------------------------------ --------------------------- ---------------------------
----------------------
Operations of the Account Federal registration of GWL&A GWL&A
units of separate account
(24f-2 fees)
------------------------------ --------------------------- ---------------------------
----------------------
</TABLE>
<PAGE>
SCHEDULE D
TRADING AND NSCC NETWORKING AGREEMENT
<PAGE>
SCHEDULE E
ADMINISTRATIVE SERVICES
C. GWL&A, or an affiliate, will provide the properly registered and licensed
personnel and systems needed for all customer servicing and support - for
both fund and annuity information and questions - including:
responding to Contract owner inquiries; delivery of prospectus - both
fund and annuity; entry of initial and subsequent orders; transfer of
cash to insurance company and/or funds; explanations of fund objectives
and characteristics; entry of transfers between funds; fund balance and
allocation inquiries; mail fund prospectus.
D. GWL&A, or an affiliate, will communicate all purchase, withdrawal, and
exchange orders it receives from its customers to each Designated
Portfolio.
Administrative Service Fee
For the services, GWL&A or its affiliate shall receive a fee of x.xx% per annum
of the average aggregate daily net asset value of shares of the Designated
Portfolio(s) held in the Account, payable by the Adviser directly to GWL&A or
its affiliate. Such fee shall be paid in arrears quarterly. Each quarter's fee
shall be determined based on assets in the Account at the end of each quarter
and each quarterly fee will be independent of every other quarterly fee. Such
fee shall be due and payable automatically within 20 (twenty) days after the
last day of the quarter to which such payment relates.
The Fund will calculate and GWL&A will verify the asset balance for each day on
which the fee is to be paid pursuant to this Agreement with respect to each
Designated Portfolio.
<PAGE>
12b-1 Distribution Related Fees
The Adviser, or its designee, agrees to pay GWL&A or its affiliate a fee of
x.xx% per annum of the average aggregate daily net asset value of shares of the
Designated Portfolio(s) held in the Account. Such fee shall be paid in arrears,
quarterly. Each quarter's fee shall be determined based on assets in the Account
at the end of each quarter and each quarterly fee will be independent of every
other quarterly fee. Such fee shall be due and payable automatically within 20
(twenty) days after the last day of the quarter to which such payment relates.
<PAGE>
SCHEDULE F
NON-COMPETE PROVISIONS
GWL&A intends to offer Fund, Adviser and Distributor, as applicable, access to
their current and prospective customers hereinafter "Customers" so that
Customers will have the option of purchasing the Designated Portfolio shares of
the Fund. Fund, Adviser and Distributor, as applicable, desires to make the
Designated Portfolio(s) available to Customers, yet acknowledges that under
certain circumstances, the ability of Fund, Adviser or Distributor, as
applicable, to solicit business from Customers should be subject to special
limitations in exchange for the increased ability to offer its product through
GWL&A's introduction. An introduction will consist of GWL&A's inclusion of the
Designated Portfolio(s) in the deferred compensation product offered to a
Customer for that Customer's consideration.
3. In the scenario where GWL&A introduces Fund, Adviser or Distributor, as
applicable, in any manner to a Customer which ultimately purchases a
deferred compensation product from GWL&A, and GWL&A includes the Designated
Portfolio(s) in the products offered to that Customer, Fund, Adviser and
Distributor, as applicable, agree not to utilize any confidential
information regarding the Customer and/or its employees' participation in
plan(s) received in connection with offering its product to Customer in any
solicitation of Deferred Compensation Business from that Customer. Further,
Fund, Adviser and Distributor, as applicable, will not attempt to contact
Customers regularly nor attempt to sell its mutual funds directly to
Customer on a stand-alone basis while the Designated Portfolio(s) are
included in GWL&A's arrangement with the Customer. For purposes of this
Agreement "Deferred Compensation Business" includes, but is not limited to,
group or individual annuity contracts, GIC's, separate accounts and wrapped
or unwrapped mutual funds whether sold separately or in conjunction-with
each other.
4. In the scenario where GWL&A introduces Distributor in any manner to a
Customer which does not purchase a deferred compensation product from
GWL&A, Distributor is not subject to any prohibitions regarding sales to
and communications with that Customer. Likewise, there are no prohibitions
where GWL&A provides no introduction.
GWL&A may decide in its discretion when it desires to provide an introduction to
one of its Customers. GWL&A has no obligation to provide introductions to its
Customers.
